Thursday June 28, 2012

In its eagerly awaited decision on the Affordable Care Act, a/k/a Obamacare, the Supreme Court's decisive swing vote surprisingly belonged, not to Justice Anthony Kennedy as expected, but instead to Chief Justice John Roberts, who was appointed to the court by President George W. Bush.

Although five of the nine Supreme Court justices were appointed by Republican presidents, Chief Justice John Roberts joined with the four justices appointed by Democratic presidents to uphold the controversial individual mandate and Medicaid expansion provisions of President Obama's Affordable Care Act.

Chief Justice Roberts assigned to himself the job of writing the majority opinion. He found that the Act's individual mandate requiring citizens to purchase health insurance or pay a fine, though not authorized by the Commerce clause of the Constitution, nonetheless was authorized under the Congressional power to tax. He also wrote that the expansion of Medicaid coverage could stand, but without the power specified in the Act to revoke existing Medicaid funding to states if they decline to comply with the expansion.

Chief Justice Roberts also was the decisive swing vote in the Court's 5-3 decision earlier in the week striking down three of four contested provisions in the Arizona immigration law S.B.1070. In that case, if either he or Justice Kennedy had instead dissented, the resulting 4-4 split, because of Justice Elena Kagan's recusal, would have sustained the lower court opinion striking all four contested provisions.

In the immigration case, the Chief Justice's vote may have enabled one of the contested Arizona provisions to survive. But on the Affordable Care Act, it's hard to see any silver lining for conservatives in the Chief Justice's vote.

I think the Chief Justice voted the way he did because he didn't want, and he didn't want "his" Supreme Court, to end up on the wrong side of history.

Few, if any, people are as conscious of the history of the Supreme Court as those who currently sit as justices. Maintaining respect for, and the reputation of, the high court is the particular concern of the Chief Justice whose name is associated with the court.

All students of the Supreme Court are aware of its history in blocking Congressional efforts to regulate hours for child labor, to establish a minimum wage, and President Franklin Roosevelt's early initiatives to respond to the Great Depression. No one remembers the obstructionist justices. But the justices who dissented like Louis Brandeis and Oliver Wendell Holmes have been honored by history.

History is written by the winners. I think the Chief Justice believes that he and his court will be judged to have been on the right side of history.